6.1. SR 05-24-1999
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MEMORANDUM
River TO:
FROM:
Mayor and Council ii'
Marc Nevinski, Assistant Director. 0
Economic Development .
DATE:
May 24, 1999
SUBJECT: Purchase Offer on the Holt/Jackson
Parcel
Issue
This past week a purchase contract was received in the amount of $350,000
for the Holt/Jackson parcel located on U.s. Highway 169. The buyer, T.S.
Restaurant LLC, is proposing to build a Denny's restaurant on the site.
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Overview
The Holt/Jackson site is approximately two acres, however, due to its shape,
only about one acre is developable. The Planning Commission and City
Council concurred that the sale of the site would include the preservation of
the existing stand of pine trees.
The parcel is zoned Neighborhood Commercial and a Class I restaurant such
as Denny's, is required to obtain a CUP under the zoning ordinance.
Subsequently, the purchase contract presented to staff is contingent upon the
Planning Commission and City Council approving the site plan and issuing a
CUP. It is anticipated that the development proposal will be reviewed at the
July 19, 1999 Planning Commission meeting. Final consideration of the site
plan and CUP will then be made by the City Council on August 21,1999.
Attachments
. Zoning Ordinance
. Site Map
. Concept Plan developed by city staff
. Copy of $5000 earnest money check
. Purchase agreement
Recommendation
Staff recommends that the Council authorize execution of the attached
purchase agreement with changes from the City Attorney, Peter Beck.
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13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 . TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425
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ii. Car, RV and marine sales
iii. Nonprofit clubs, lodges, or halls
iv. Licensed daycare facilities
v. Institutional uses
vi. Equipment rental businesses
vii. Commercial recreational facilities
viii.Auto repair shops
ix. Shopping centers
x. On-sale liquor establishments
xi. Governmental buildings and facilities
xii. Veterinary clinics
xiii. Car Washes
xiv. Restaurants (Class II)
xv.
Motor vehicle service stations
xvi. Motor vehicle specialty shops
xvii.Therapeutic massage and sauna establishments
xviii.Lumber Yard
xix. Pawnshops (250 foot setback from any residential
zone and 500 foot setback from schools, parks, daycare
centers, churches and other pawnshops, measured from
the property line)
xx. Hotels and motels
xxi. Restaurants (Class I)
13. C4 - Neighborhood Commercial
STATEMENT OF PURPOSE: The purpose of the C4-Neighborhood
Commercial district is to provide land use opportunities to
attract convenience retail stores, and personal service
establishments. It is intended that this district primarily
serves surrounding residential neighborhoods and businesses
within the immediate area. Neighborhood Commercial districts
shall be located adjacent to collector or arterial streets so
that traffic does not impact local streets. In order for
development to occur within this district, public sanitary sewer,
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storm sewer, and municipal water must be available and hooked up
in order to occupy the particular business.
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A. Permitted Uses
i. Convenience retail sales of goods and services
ii. Dry cleaning and laundry establishments
~~~. Personal service and repair establishments such
as barber and beauty shops, shoe repair, etc.
iv.. Printing shops and publishing shops
B. Accessory Uses
i. Uses customarily incidental to the permitted or
conditional uses allowed in this district
ii. Off-street parking areas
iii. Signs as regulated in the Elk River zoning
ordinance
C. Condi tional Uses
i.
Retail sale of gasoline
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ii. Car wash facilities
iii. Daycare centers
iv. Educational/institutional uses
v. Off-sale liquor stores
vi. Class 1 and Class 2 restaurants
vii. Financial institution
viii. Mortuaries, funeral homes
D. Lot Standards
i. Minimum lot area - one (1) acre.
ii. Minimum frontage - 150 feet.
iii. Minimum depth - 150 feet.
iv. Maximum building height shall not exceed 2
stories or 30 feet, whichever is less.
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9.33
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v. Maximum lot coverage by building shall not exceed
thirty-five percent, (35%).
Building Setback
i. Front yard setback - 25 feet.
ii. Side yard setback - 20 feet.
iii. Rear yard setback - 20 feet.
iv. The yard adjacent to any residential district
shall have a minimum setback of thirty (30) feet.
F. Parking and Driveway Setback
i. Front yard - twenty-five (25) feet.
ii. Side yard - ten (10) feet.
iii. Rear yard - twenty (20) feet.
iv. The yard adjacent to any residential district
shall have a minimum setback of twenty-five (25) feet.
G.
Architectural Standards
i. Major exterior surfaces of all walls shall be
face brick, stone, glass, stucco, architecturally
treated concrete, or decorative block, or an approved
equivalent material as approved by the Zoning
Administrator.
H. Signage
i. Notwithstanding the provisions of Section 900.22
(Sign Ordinance) the following requirements shall be
met:
a. General Guidelines
1). All signs within a neighborhood
commercial development must consist of
materials and a design which compliments
the architectural elements of the principal
building and character of the project.
2). All freestanding signs shall have a
minimum ten (10) foot setback from all
property lines.
3) . Prior to installing any signs, a sign
permit must be obtained from the City of
Elk River Planning Department.
9.34
b.
Freestanding Sign
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1) . All freestanding signage shall consist
of a monument style sign. A maximum height
of ten (10) feet along collector streets
and a maximum height of twenty (20) feet
along arterial streets, with a maximum area
of one-hundred (100)square feet.
c. Wall Signs (Freestanding Sites)
1). Wall signage for each freestanding
building must consist of individual letters
and shall not have more than one (1) wall
sign for each principal building.
2). The-gross surface area of a wall sign
for freestanding buildings shall not exceed
ten (10) percent of the area of a building
wall, including doors and windows, to which
the sign is to be affixed.
d. Wall Signs (Multi-Tenant Building)
1) . Fascia signs for individual retail
tenants shall be for store identity only.
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2) . Capital letters shall be no larger
than 36" high, lower case letters shall be
no larger than 24' high. Signs may be
located on the building in a symmetrical
manner, but in no case shall they extend
closer than 2'0" from the projected lease
line.
14. I-I Light Industrial
STATEMENT OF PURPOSE: This District shall serve as a transition
between more industrial uses and residential and other business
uses. This District is appropriate for manufacturing,
warehousing, and similar industrial uses because of access to
warehousing, thoroughfares, the full complement of urban services
such as sewer and water, and distance from residential districts.
These areas are intended to encourage the development of
industrial uses which are clean, quiet, and free of hazardous or
objectionable elements such as noise, odor, dust, smoke, glare,
or other pollutants. These industries should be compatible with
each other and with surrounding land uses.
A.
Permitted Uses
t.
i. Offices
9.35
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13065 Orono Parkway · P.O, Box 490
Elk River, MN 55330
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. T.S. Restaurant LLC or their assignee, ("Buyer"), whose principle address is 6405 James Circle
North, Brooklyn Center, MN. 55430, hereby agrees to buy and the City of Elk River
("Sellers''), whose principle address is 13065 Orono Parkway, Elk River, MN., hereby agrees to
sell for the consideration and upon the terms hereinafter set forth, the Real Estate (the "Real
Estate") located at the northwest quadrant of Jackson Avenue and U.S. Highway #169 in the
State of Minnesota, County of Anoka, and City of Elk River, and further depicted and described
on Exhibit A which is attached hereto and made part thereof:
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Together with all easements, rights and appurtenances relating to the above-descn"bed Real
Estate, all buildings, improvements and fixtures now or hereafter located thereon, and the
Sellers' rights, title and interest in and to any streets, roadways, alleys and/or sidewalks, both
public and private, adjacent to the Real Estate (hereinafter, with the Real Estate, Collectively
called the ("Real Estate'')). The exact legal description of the Real Estate, in accordance with
Article 9, shall be substituted for the foregoing description and inserted in the General Warranty
Deed (the "Deed") referred to in Article 4(A).
ARTICLE 1 - PURCHASE PRfCE
The Purchase Price for the Real Estate (Approximately 3.0 acres) shall be Three
Hundred Fifty Thousand and Noll 00 ($350,000) (''Purchase Price"), payable on the day
of Closing (''Closing Date") by cash, cashier's check or certified check.
. ARTICLE 2 - CLOSING
Unless otherwise extended by the provisions of the Real Estate Purchase Contract (the
"Contract"), the Closing of this transaction ("Closing'') shall be held not later than
October 1, 1999 unless mutually extended by both parties.
The Closing shall be held at the office of Guaranty Title Insurance Company at 330-200
Avenue South, Suite 750, Minneapolis, MN (the "Title Insurance Company'') issuing
the title insurance commitment specified in Article 5.
ARTICLE 3 - POSSESSION
Possession of the Real Estate shall be given to the Buyer at the Closing.
ACCESS TO PROPERTY PRIOR TO CLOSING. Prior to Closing, Sellers shall afford
Buyer or Buyer's designees reasonable access to the Real Estate during reasonable hours
of the day for the purpose of examining the Real Estate, conducting soil tests and
engineering feasibility studies, and planning the proposed development of the Real
Estate, provided such activities do no interfere with the activities of the Sellers on the
Real Estate.
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Sellers hereby represent and warrant that on the Closing Date the Real Estate shall be
unoccupied and free of any lease or other right of possession or claim. or right of
possession by any person or entity other than Buyer.
ARTICLE 4 - DEED AND OTHER DOCUMENTS
Subject to performance of the Buyer, the Sellers agree to execute and deliver on Closing
Date the following:
A DEED. A Warranty Deed, in form reasonable satisfactory to Buyer, conveying good
and marketable title of record to the Real Estate, in fee simple, free and clear of all
liens, easements of record, encumbrances and other exceptions, except for the lien of
real property taxes not yet due and payable and other exceptions approved in writing
by Buyer.
B. CRV. A Certificate of Real Estate Value in the form required by MINN. STAT.
272.115.
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C. SELLERS' AFFIDAVIT. An Affidavit of Title by Sellers indicating among other
. things~ that there are no unsatisfied judgments, tax liens or bankruptcies against or
involving Sellers or the Real Estate, that there have been no labor and material
furnished to the Real Estate by or contracted for by Sellers for which payment has
not been made or for which mechanics' lien could be filed and that there are not
other unrecorded interests in the Real Estate created by Sellers.
D. FlRPTA AFFIDAVIT. A Non-Foreign Person Tax Affidavit, properly executed by
Sellers, containing such information as is required by IRC 1445 (b) (2)
E. IRS REPORTING FORM. The appropriate federal income tax reporting form, if
any, is required.
F. WELL CERTIFICATION. A well certification to the extent required by Minnesota
law.
G. OTIffiR DOCUMENTS. All other documents reasonably required of Sellers by this
Contract to transfer the Real Estate to Buyer in accordance with this Contract.
H. Any and all easements and other rights specified in this Contract shall be conveyed,
transferred and assigned to Buyer by appropriate recordable documents and Sellers
shall execute and deliver with the Deed such other documents as may be reasonably
required by any governmental entity or by the Title Insurance Company as a
condition to the issuance ofits policy of title insurance in accordance with Article V.
1. All local, municipa~ county, state and federal transfer and conveyance taxes shall be
paid by Sellers at the Closing. Buyer shall pay closing fees, all recording fees
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incurred at the Closing, including, without limitation mortgage recording fees and
mortgage registration tax.
J. Sellers and Buyer will each pay its own attorney's fees.
ARTICLE 5 - EXAMINATION
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TITLE AND EXAMINATION. Sellers shall, within a reasonable time after acceptance
of this agreement, :furnish a Title Commitment for an Owner's Title Policy to include
proper searches cov~ring bankruptcies, state and federal judgments and liens, and levied
and pending special assessments. Buyer shall be allowed ten (10) business days after
receipt of Title Commitment for examination of title and making any objections which
shall be made in writing or deemed waived. If any objection is so made, Seller shall
have ten (10) business days from receipt of Buyer's written title objections to notify
Buyer of Seller's intention to make title marketable within 120-days from Seller's
receipt of such written objections. If notice is given, payments hereunder required shall
be postponed pending correction of title, but upon correction of title and within ten (10)
days after written notice to Buyer the parties shall perform this Purchase Agreement
according to its terms. If no such notice is given or if notice is given but title is not
corrected within the time provided for, this Purchase Agreement shall be null and void,
at option of Buyer; neither party shall be liable for damages hereunder to the other and
earnest money shall be refunded to Buyer. Buyer and Seller agree to sign Cancellation
of Purchase Agreement. Buyer shall pay the entire premium of such policy if no
lender's policy is obtained, and only the additional cost of obtaining a simultaneously
issued owner's policy if a lender's policy is obtained (Buyer shall pay the premium for
the lender's policy).
ARTICLE 6 - TITLE CORRECTIONS AND REMEDIES
Sellers shall have 120-days from receipt of Buyer's written title objections to make title
marketable. Upon receipt of Buyer's title objections, Sellers shall, within ten (10)
business days, notify Buyer of Sellers' intention to make title marketable within the 120-
day period. Liens or encumbrances for liquidated amounts which can be released by the
payment or escrow from proceeds of Closing shall not delay the Closing. Cure of the
defects by Sellers shall be reasonable, diligent, and prompt. Pending correction of title,
all payments required herein and the Closing shall be postponed.
A. If notice is given and Sellers make title marketable, then upon presentation to Buyer
of documentation establishing that title has been made marketable, and if not
objected to in the same time and manner as the original title objections, the Closing
shall take place within ten (10) business days of on the scheduled Closing Date,
whichever is later.
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B. If notice is given and Seller proceeds in good faith to make title marketable but the
120-day period expires without title being made marketable, (i) Buyer may declare
this Agreement null and void by notice to Seller, neither party shall be liable for
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damages hereunder to the other, and earnest money shall be refunded to Buyer or (ii)
Buyer may waive the title objections and proceed to close.
ARTICLE 7 - TAXES AND ASSESSMENTS
Sellers shall payor credit against the Purchase Price all Real Estate taxes, and all special
assessments levied or pending against the property.
Real Estate taxes due and payable in the year of closing shall be prorated between
Sellers and Buyer on. a calendar year basis to the Closing Date.
ARTICLE 8 - UTILITY CHARGES
Sellers shall payor credit on the Purchase price all utility charges and all charges for
services of any type furnished to the Real Estate by all governmental agencies, public
utilities and/or private utilities through the Closing Date. Seller warrants that all public
or private utilities are available at the property lines.
ARTICLE 9 - CONDITIONS TO CLOSING
Buyer's obligation to close this transaction is subject to the following conditions and
covenants:
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A Buyer obtaining financing necessary to complete this transaction which includes
interim and permanent financing for land acquisition and building and equipment.
B. GOVERNMENTAL APPROVALS. Buyer receiving all City approvals to build a
Denny's Restaurant.
C. SURVEyS. Sellers, at Sellers' expense, obtaining a survey, and certified to Buyer
and the Title Company by a registered land surveyor licensed in the State of
Minnesota as having been prepared in accordance with the Minimum Standard Detail
Requirements for Land Surveys, as adopted by the American Land Title Association
and the American Congress on Surveying and Mapping in 1986, and bearing a legal
description, made by a licensed surveyor, showing the area, dimensions and location
of the Real Estate to the nearest monuments, streets, alleys or property, the location
of all improvements and encroachments, the location of all proposed and recorded
easements against or appurtenant to the Real Estate, and not disclosing any condition
rendering the Real Estate unusable, in the Buyer's reasonable judgement, for the
intended purpose of the Buyer.
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D. SOIL TEST. Buyer at Buyer's option, shall have obtained, at Buyer's cost, borings,
percolation tests, toxic or hazardous substance tests and other test (collectively "Soil
Tests") showing that the Real Estate is satisfactory, in Buyer's reasonable judgment,
for building foundations and the construction, operation and financing of the
improvements which Buyer may wish to make.
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E. TITLE INSURANCE. Buyer at Buyer's option, shall have obtained a satisfactory
title insurance commitment or preliminary title report in accordance with Article 5
above.
F. ENVIRONMENTAL AUDIT AND TESTING. At Buyer's option, Buyer at its
costs, shall have obtained a satisfactory Phase I Environmental Audit of the Real
Estate and any other environmental testing which Buyer deems reasonably necessary
to evaluate potential environmental risks. If such audit or tests reveal the existence
of any toxic or hazardous wastes, material or substance on or under the Real Estate,
Buyer may terminate this Contract.
G. SELLER'S PERMORMANCE. Sellers shall have performed all terms, covenants
and obligations required of Sellers hereunder.
All action taken by or on behalf of Buyer pursuant to this Article 10 shall be in
accordance with all applicable laws,. rules and regulations of the appropriate
governmental authorities having jurisdiction. Buyer shall indemnify, defend and hold
Sellers harmless o~ from and against all claims, causes of action losses of whatsoever
kind or nature, including but not limited to, all liability by reason of injury (including
death) to persons and damage to any property and mechanics' liens or similar charges
which may affect the Real Estate resulting from the entry onto the Real Estate or work
conducted thereon by or on behalf of Buyer.
. ARTICLE 10 - EARNEST MONEY
Buyer will deposit with Riverdale Realty, Ltd. as Escrow Agent, the sum of Five
Thousand and No/lOO ($ 5,000.00), which Buyer and Sellers agree shall be held in trust.
At the closing the Earnest Money, shall be credited or returned to Buyer. If this Contract
is terminated for any reason other than Buyer's default the Earnest Money shall be
returned to the Buyer.
ARTICLE 11- NOTICES
Unless otherwise provided herein, all notices shall be in writing and shall be deemed
effective on the earlier of either (a) personal delivery or (b) deposit in the U.S. Mail,
marked certified or registered, return receipt requested, with postage prepaid as follows:
To Sellers:
City of Elk River
13065 Orono Parkway
Elk River, MN
To Buyer:
Yuns Restaurant, Inc.
6405 James Circle North
Brooklyn Center, MN 55430
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With Copies to:
L.A. Beisner
P.O. Box 1234
Maple Grove, MN 55311
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ARTICLE 12 -REPRFSENTAnONS AND WARRANTIES OF SRT .T .~ANDBUYERS
SELLERS' WARRANTIES. Sellers represent and warrant to Buyer as follows:
A. Neither the execution nor delivery of this Contract by Seller nor its perfonnance by
Sellers will conflict with or result in a violation or breach of any law, regulation,
order, writ, or injunction of any court or governmental agency applicable to Sellers
or to the Real Estate, or of any term, condition or any indenture or other contract of
agreement to which Sellers are a party, or cause a default thereunder, or result in the
creation or imposition of any lien, charge or encumbrance of any nature whatsoever
on the Real Estate pursuant to the terms of any such agreement.
B. Sellers will convey fee title to the Rea~ Estate free and clear of any and all liens, deed
of trust, land trusts, mortgage, pledges, security interests, leases, charges,
encumbrances, easements, joint ownerships, or restrictions of any kind except as
. may be permitted by this Contract, or those expressly approved in writing by Buyer
after examination of title to the Real Estate in the manner described in Article 5 of
this Contract.
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C. Neither Sellers nor any agent or employee of Sellers has knowledge of or have
received notice of any suits, judgments or violations relating to or at the Real Estate
of any zoning, building, fire, health, pollution, environmental protection regulation
which has not been heretofore corrected.
D. Sellers have not used, generated, stored or disposed of above, in, on, under or around
the Real Estate any Hazardous Materials, as hereinafter defined, and has no
knowledge, of any Hazardous Materials above, in, on, under or around the Real
Estate. The term "Hazardous Materials" means any material or substance which is
listed in the United States Department of Transportation Hazardous Materials Table
(49 CPR 172.101) on the date of this Contract which is kept, used, or disposed of in
a manner and in quantities which do not comply with applicable laws and regulations
pertaining to said materials or substance. Further, Sellers agree that it will not use,
generate, store or dispose of or permit the use, generation, storage or disposal of any
Hazardous Materials, as hereinabove described, above, in, on, under and/or around
the Real Estate now or at any time prior to Closing Date.
BUYER'S WARRANTIES. Buyer represents and warrants to Sellers as follows:
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A. The execution and delivery of this Contract by Buyer and the consummation by the
Buyer of the transaction contemplated hereby are within the Buyer's powers and all
requisite action has been taken to make this Contract valid and binding upon the
Buyer in accordance with its terms.
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B. Neither the execution nor delivery of this Contract by Buyer nor its performance by
Buyer will conflict with or result in a violation or breach of any law, regulation,
order, writ, or injunction of any court or governmental agency applicable to Buyer.
ARTICLE 13 - REMEDIES
In the event Sellers fail to comply with any or all of the obligations, covenants,
warranties or agreements to be performed, honored or observed by Sellers under and
pursuant to the teI'lIlS and provisions of this Contract, and such default is not cured
within thirty (30) days after written notice, the Buyer may, as its sole and exclusive
remedy, either (i) terminate this Contract, in which event the Earnest Money, plus any
accrued interest thereon, shall be refunded to Buyer and both parties shall be released
from any further liability hereunder or (ii) seek an action for specific performance
against Sellers to enforce the provisions of this Contract.
The firilure of either party to act upon. a default of the other in any of the terms,
conditions or obligations under this Contract shall not be deemed a waiver of any
subsequent breach of defauh under the terms, conditions or obligations hereof by such
defimhing PartY.
ARTICLE 14 - MISCELLANEOUS
This contract shall inure to the benefit of and bind the parties hereto, their respective
heirs, executors, administrators, personal and/or legal representatives, successors and
assigns.
All of the covenants, warranties, representations and agreements of Sellers and Buyer
contained in the Contract or in any document executed by either party pursuant to this
Contract shall survive the execution and delivery of the Deed.
This Contract constitutes the entire agreement between the parties and there are no
representations, oral or written, relating to the Real Estate or to this transaction wi rich
have not been incorporated herein.
Sellers:
Buyers:
City of Elk River
T.S. Restaurant, L.L.C.
By: /l!ftJ/O?1~
S'-ct-91
Date
By:
Date
7
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EXHIRIT A
Lot 1 Block 1
and
Outlot A, preliminary Plat with metes and bounds description
as follows:
Thot port of the Southea,t Quart.or of the Northwest Quartet" of Section 27. Township J3
North. Range 26. VIaL Sh..burne County. Minnesota, I that lies. eosteny of. the easterly line
of Hoft Street Northwest and its southwesterly extension as dedicated in the recorded plot
of RIDGEWOOO EAST JRO ADDITION in the files of the Sherburne County Recorder
/;:. }:~.2:. on,d Whi~h lies ~~~..,e, eas~:~.y .~ine..;.Of ~~tt~~i:!~Ck.. ~in$~i~ ~~'\;P~it.7~~~~ ,:~s
,.:..~.~~~;." ..;.". ,~'J':~~.~~~.f!f.'~~";:/ · :.~;.~,.. .,
, ' " '. ." , ". " '_,' '.' - . . - ~ . :.... I .' .
Line 1: Beginning at the pOWll ~f intersection of the east and west quarter Une of soid
Section 27 ond 0 line run paroUeI with and distant 190 f..t westerly Of Line 2 described
below; thence run northerly ot right ongles to soid east and west quarter line for 50 feet;
. thence run northeasterly to 0 point on a line run parallel with and distant 100 feet westerly
of said Line 2, distant 150 feet northerly of its intersection with said east and west quorter
line; thence run northerly along aaid 100 foot parallel line for 1200 feet and th.ere
terminating;
Line 2: Be9inning at 0 point on the south line of said Section 27, distance 612.2 feet east
of the ~outh quarter corner thereof; thence run northwesterly at on angle of 73 degrees 16
minutes 00 .econQ8 ~ith laid .80uth 8~tion line for 2313..0 teet; thence qeflect to the right
at OIl angle of 21 degrees 26 minuleli 00 seconds for 2000 feet and there ~er~inoting.
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